Being an employment law firm, we continuously receive questions from employers and HR questions that are pertinent to their workplace. To address some of the most common questions, we’ve put together a list of the top 3 HR questions which we answer below.
1. How do we avoid constructive dismissals in our workplace?
As constructive dismissal claims can be quite costly for employers, we often get asked how these claims can be avoided altogether, and this questions certainly is one of the top 3 HR questions we receive. While there is no way to guarantee avoidance, there are some precautions HR professionals can take to minimize their risk when it comes to constructive dismissals.
A constructive dismissal claim typically transpires where an employer unilaterally (without the employee’s consent) makes changes to fundamental terms of the employee’s employment agreement. Where an employee feels forced to quit because of one of these changes, or from an employer’s failure to address a health and safety concern, for example, a constructive dismissal claim could arise.
To minimize the risk of constructive dismissal claims, employers should ensure that their employment agreements allow for some flexibility when it comes to job duties and tasks dependent on the needs of the business. When drafting an employment agreement, an employment lawyer can address this in a manner that is aligned with the needs of the business.
Employers should also ensure that they are not making changes unilaterally and are offering the employee with the choice to accept. Lastly, having a well-structured and accounting reporting procedure for concerns raised by employees will assist employers in demonstrating that they are committed to a safe working environment.
2. We have an insubordinate employee who we want to dismiss – what should we keep in mind?
We often get asked by HR professionals – what do we do with an insubordinate employee? While there are several ways to handle this situation, there are some key factors that help minimize liability for a wrongful dismissal claim should the employer wish to dismiss the employee for insubordination.
Documentation plays an important role when it comes to substantiating any claims of insubordination. Employers should maintain a record of every instance of misconduct or insubordination, including key details such as the date and time, any witnesses, and the details of what transpired, as well as any corrective or disciplinary action that was taken.
Ensuring there is a robust progressive discipline system also assists in minimizing risk for a wrongful dismissal claim. Demonstrating that the employee was provided with multiple opportunities to correct their behaviour, and continued to fail to do so, provides the employer with greater basis for dismissing the employee.
Lastly, ensuring that there is a workplace policy in place can assist employers in substantiating a dismissal due to insubordination. A workplace policy would typically be included in an employee handbook, which the employee signs off on at the beginning of their employment. A workplace policy on insubordination and the related consequences, provides notice to all employees of what can be expected should they be insubordinate in their employment.
3. We have an effective and enforceable employment agreement for our employees – do we really need workplace policies?
Some employers and HR professionals believe that an employment agreement is all that is required to manage an employment relationship successfully. However, we have seen time and time again that is not the case. One of the top 3 HR questions we receive is whether workplace policies are necessary. An employment agreement does not capture all of the details and particularities of an employment relationship at any given workplace. In fact, a workplace policy goes hand in hand with an employment agreement, where employers are able to detail the expected conduct while employed with the employer.
Lack of workplace policies for instances which can lead to a dismissal can be costly for employers, as they can face a wrongful dismissal claim. By providing workplace policies and having the employee sign off on the notice of the conduct that is expected in the workplace, places the employer in a better position to defend against a wrongful dismissal claim.